Residential Eviction Defenses

It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.

A residential landlord cannot terminate a rental agreement with a tenant without the tenant’s agreement, unless he or she takes the tenant to court and gets a court order. This legal proceeding is called an eviction case. Assuming you are the tenant, during the trial, you can present the court with reasons you shouldn’t have to move. These reasons are called defenses. If your defense is successful, you will be able to stay in the home.

Oregon law requires the landlord to comply with the legal requirements for termination notices. These requirements are stated in the notice. If the eviction notice is wrong, or has not been given to you as required by law, this is a defense that you can rely on in court. (Specific requirements for eviction notices are discussed in the related Residential Eviction Notices topic.)

Other defenses depend on the reason for the landlord’s notice of termination. Note that special rules apply to some kinds of housing for people in rehabilitation from drug and alcohol abuse. For these rules to apply, the landlord must be either a housing authority or a nonprofit agency.

Your defense may be that you simply did not do what your landlord is complaining about. Another defense may be that your actions did not violate the rental agreement or did not affect health or safety.

Another possible defense is that the landlord’s attempt to evict you is based on the landlord’s enforcement of an unreasonable rule.

Finally, you may try to prove that you corrected the landlord’s complaint, by making repairs, paying for damages, or some other way.

In evictions based on non-payment of rent, the best defense is that the rent actually was paid. You may also have a defense if you only paid part of the rent. (In some cases, the landlord loses the right to evict for non-payment of rent if he or she accepts a partial payment.)

Even if you didn’t pay any rent, you may have a defense to an eviction for non-payment of rent. If you have a claim against the landlord that would entitle you to be compensated for damages you suffered, you may be able to use this as a defense. You pay rent to ensure that your unit is in habitable condition. A dwelling is habitable if it meets all the requirements set out in the law. If your unit is not habitable, you can ask the court to determine how much money your landlord owes you for damages and apply that to the rent owed.

You may also offset unpaid rent if your landlord abused his or her access to your unit. Except in emergencies and under certain circumstances, or within seven days of your written request for repairs, your landlord may not enter your unit unless he or she has given you at least 24 hours notice. A landlord who breaks this law has done what is called abuse of access, and you may be able to recover actual damages to offset your unpaid rent.

You can make other claims to offset unpaid rent if the landlord locked you out of your home or purposefully shut off essential services, such as water or heat. A landlord is not allowed to do these things. If your landlord locks you out or shuts off your service, you may recover damages up to two months’ rent. These damages may be used to offset a landlord’s claim for non-payment of rent and stop an eviction.

The hardest eviction proceedings for tenants to win are those based on 30-day notices for no cause. In these cases, the tenant has only two possible defenses: retaliation or unlawful discrimination. When you raise a defense based either on retaliation or discrimination, the landlord must justify the eviction for some other reason.

Your landlord cannot retaliate against you if you complained to the landlord — either orally or in writing — or told the landlord you plan to complain to a governmental agency responsible for enforcement of a building, health or housing code. You are also protected from retaliation after complaining to your landlord that he or she failed to keep the unit in habitable conditions, abused the rights of access to the unit or tried to evict you without taking you to court. You are also protected from retaliation for doing any of the following:

organizing or becoming a member of a tenants’ union

complaining to the landlord for his or her failure to give you 30 days notice of a rent increase

testifying against the landlord in any judicial, administrative or legislative proceeding, or

successfully defending an eviction proceeding brought by the landlord within the previous six months.

Note that you cannot use the defense of retaliation if you are behind on rent. If your defense is based on a complaint about a violation of a building or housing code and you caused the violation, the retaliation defense will not work. If complying with the health or building code would require remodeling or demolition of your unit, you can be evicted because you will not be able to live in the unit while it is repaired.

The only other kind of defense to an eviction based on a 30-day notice is discrimination. Your landlord may not discriminate against you in violation of any law, including the state laws prohibiting discrimination against persons with assistance animals (like guide dogs) and the state laws that prohibit discrimination based on race, color, sex, marital status, familial status, sexual orientation, source of income, religion, national origin or disability of any person. Nor can you be evicted because you became the victim of a sexual assault, domestic violence or stalking. In some cities, there may be additional grounds for illegal discrimination. If you can prove that your landlord’s eviction breaks any of these laws, you have an eviction defense.

Manufactured dwelling and floating home facility tenants with month-to-month rental agreements cannot be evicted without good cause. Therefore, they have a good defense against any facility landlord who attempts an eviction on notice without cause. Facility tenants who have term leases, however, may be subject to termination of tenancy if the lease says so.